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Super Turnkey Pty Ltd & Anor v Queensland Fire and Emergency Service QPEC 43
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Super Turnkey Pty Ltd & Anor v Queensland Fire and Emergency Service  QPEC 43
SUPER TURNKEY PTY LTD
ACN 608 534 247
QUEENSLAND FIRE AND EMERGENCY SERVICE
21 of 2020
Planning and Environment
Planning and Environment Court, Brisbane
23 June 2020, ex tempore
23 June 2020
Appeal allowed. Orders as per draft.
PLANNING AND ENVIRONMENT – APPEAL AGAINST DECISION OF DEVELOPMENT TRIBUNAL – where the second appellant approved the first appellant’s application for a development permit for building works – where the respondent, on two occasions, issued a non-compliant inspection report after the development approval took effect – where the first appellant twice had the approval changed to seek to satisfy the respondent – where the respondent appealed to the Development Tribunal against the second appellant’s decision to approve the second change to the development approval – where the Tribunal erred in approaching the appeal on the basis that it was considering whether a development approval should have been granted or withheld, rather than whether an existing changed development approval ought be changed for a second time – where the Tribunal’s reasons for its decision were insufficient – where the Tribunal did not consider or give sufficient reasons with respect to whether the imposition of conditions could have achieved compliance with the assessment benchmarks – whether the matter should be remitted to the Tribunal to redecide the matter according to law – where the parties had reached agreement such that final orders could be made without the need to resolve any dispute of fact or merit
Planning Act 2016 (Qld) ss 49(1), 60(2)(d), 78(1), 229, sch 1 table 1 item 2, sch 1 table 3 item 1, sch 2
M J McDermott for the appellants
G B Wilshier (sol) for the respondent
HerdLaw for the appellants
Crown Law for the respondent
- This is an appeal against the decision of a development tribunal of the 5th of December 2019 which purported to change the decision by the second appellant, as assessment manager, on an application made by the first appellant, and from which the respondent had appealed to the Development Tribunal.
- The development which gave rise to some dispute is a 30-room motel development, in respect of which the second appellant approved the first appellant’s application for a development permit for building works. That approval was granted on the 21st of June 2018.
- The application for that development approval had triggered a response from the respondent, which requested it be treated as a properly made submission. The development approval included a performance solution with respect to fire safety. The development approval was not the subject of any appeal, and duly took effect.
- Subsequently, however, the respondent issued what was referred to as a non-compliant inspection report. Rather than take issue with that report, the appellant decided to change its development approval, to require an alternate performance solution for fire safety, in an endeavour to satisfy the respondent. In that regard, the second appellant issued a decision notice dated 24 April 2019, approving a change to the development approval. That was not the subject of any appeal, and it duly took effect.
- The respondent, however, issued a further non-compliant inspection report. The appellant again sought to appease the respondent by again changing its approval, to seek a different performance solution. The second appellant approved that change, by a decision notice dated 12th of August 2019. On this occasion, the respondent appealed to the Tribunal against the decision to approve that change. It is that appeal which came before the Tribunal, and which, upon appeal, comes before this Court.
- An appeal against the decision of a tribunal may, relevantly, only be on the grounds of error or mistake of law, or a jurisdictional error. The parties all agree that the Tribunal fell into error in both respects, but must convince the Court of that. The Court does not overturn a decision of a tribunal simply on the basis of consent of the parties.
- The primary error of the Tribunal lies in its approach to the appeal on the basis that it was considering whether a development approval should be granted or withheld, rather than on the basis of whether an existing changed development approval ought be changed for a second time. On the first page of the Tribunal’s decision notice, it characterises the appeal as one against a decision notice:
“Approving a development application for a 30-room motel.”
That is a mischaracterisation.
- The Planning Act defines a development application in schedule 2 to mean an application for a development approval. The definition of a development approval is set out in section 49(1). A change application is separately defined by reference to 78(1) of the Act. This mischaracterisation is reflected in the terms of the decision which purports to refuse “the development application”. The criteria for assessing an application for a change differ depending upon whether a change is a minor change. The second appellant dealt with the matter on the basis that it was a minor change. The Tribunal did not address that characterisation.
- In its decision notice, the Tribunal addresses the matter of jurisdiction by calling in aid section 229 of the Planning Act, read with schedule 1, table 3, item 1. That is the item which is relevant to the giving of a development approval for building work, to the extent the building work required code assessment against the building assessment provisions. That, however, was not what was sought. Instead, the first appellant was seeking to change the development approval. The relevant jurisdiction, therefore, is to be found in table 1, item 2, to the extent that the respondent was an affected entity that gave a pre-request notice or response notice. The material before me did not establish that such a pre-request notice or response notice was given, but that was not an issue which was taken by the appellant.
- In its shortly expressed reasons on the final page of its decision notice, the Tribunal stated that:
“The building development application should have been refused.”
And that the amended decision notice:
“Approving the development application on certain conditions should not have issued.”
- This is consistent with the tenor of the decision, which indicates that the Tribunal addressed itself to the wrong question, namely whether a development approval should be granted, rather than to the question as to whether a changed development approval should be further changed. The Tribunal fell into error in that regard.
- That was not the limit of the Tribunal’s errors. I have already noted that the reasons for the decision were briefly stated. Whilst economy of expression is a virtue, reasons must, nevertheless, be adequate, and for the reasons set out in the written submissions for the appellant, the Tribunal’s reasons were insufficient in this case.
- Further, in considering an application for a minor change, the Act requires the responsible entity to consider all matters it would, or may assess against, or have regard to if the change application were a development application. In deciding a code assessable application, the Act requires, before refusal of application, the consideration of whether noncompliance with the assessment benchmarks can be achieved by the imposition of conditions (s 60(2)(d)). It is evident that the Tribunal, in finding noncompliance, did not consider, or if it did consider, did not give sufficient reasons with respect to, whether conditions could have achieved compliance.
- For those reasons, I accept the submissions of the parties that the Tribunal fell into error in the respects identified. Because the grounds of appeal to this Court are limited in ways which indicate that this Court’s appellate jurisdiction exists for the correction of errors of law and matters of jurisdiction, I would ordinarily remit the matter to the Tribunal to redecide the matter according to law, rather than myself embark upon a consideration of the merits of the appeal.
- The parties have, however, reached an accord with respect to the merits of the matter. There is nothing to be gained by remitting the matter to the Tribunal simply for the purposes of the matter being disposed of pursuant to the resolution. The matter can be finalised in this Court without this Court embarking upon an inappropriate adjudication of contested fact and merit. I am therefore prepared to make the orders which the parties seek.
- Published Case Name:
Super Turnkey Pty Ltd & Anor v Queensland Fire and Emergency Service
- Shortened Case Name:
Super Turnkey Pty Ltd & Anor v Queensland Fire and Emergency Service
 QPEC 43
23 Jun 2020